BARBARA HENNEBERRY VS. RICHARD HENNEBERRYÂ (FM-20-1195-06, UNION COUNTY AND STATEWIDE)
A-5753-14T1
| N.J. Super. Ct. App. Div. | Jul 10, 2017Background
- Parties divorced in 2007 and incorporated an Interspousal Settlement Agreement (ISA) into the Final Judgment: defendant to pay permanent alimony of $1,750/month and maintain $300,000 life insurance naming plaintiff beneficiary while alimony continues. ISA identified age 63 as an agreed "good-faith" retirement age for defendant.
- Defendant continued working until mandatory retirement at age 65 (2014); plaintiff retired at age 65 in 2015 and has stage IV ovarian cancer with ongoing medical needs.
- After retirement defendant unilaterally reduced life insurance to $225,000 and moved to terminate or reduce alimony and obtain reimbursement of payments made post-retirement; plaintiff sought enforcement of the $300,000 life policy and attorney fees.
- Defendant submitted incomplete financial disclosures (late/omitted CIS); plaintiff produced documentation showing defendant had significant bank balances, pension/Social Security income, and inherited properties (he is executor/beneficiary) that were not initially disclosed.
- Trial court denied defendant's motion to terminate/reduce alimony, ordered enforcement of the $300,000 life insurance, and awarded plaintiff $2,000 in attorney fees; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant's "good-faith" retirement at age 65 automatically terminates or requires reduction of alimony | Henneberry: ISA does not permit automatic termination; plaintiff needs ongoing support due to medical/insurance costs | R. Henneberry: Good-faith retirement (age agreed in ISA) warrants termination or reduction of alimony and reimbursement of post-retirement payments | Court: No automatic termination; retirement is a factor but defendant failed to prove by preponderance a substantial and permanent change warranting modification; motion denied |
| Whether trial court improperly considered assets acquired via equitable distribution/inheritance in modification analysis | Henneberry: Court properly considered all of defendant's assets and unearned income in assessing ability to pay | R. Henneberry: Court should not have considered assets received via equitable distribution under N.J.S.A. 2A:34-23j(4) | Court: Consideration of assets was appropriate; defendant failed to separate sources; any error was harmless given minor role of those items in the overall analysis |
| Whether trial court should have conducted a plenary hearing before deciding modification | Henneberry: No plenary needed because facts were in dispute only as to bald, undocumented assertions; papers sufficed to deny relief | R. Henneberry: Silvan entitles a retiree to a hearing; factual disputes (e.g., asset use, house-flipping, inheritance) require live testimony | Court: No abuse of discretion denying plenary; movant must first make prima facie showing of changed circumstances and here defendant's conclusory/undocumented claims did not create genuine material factual disputes |
| Whether court erred in enforcing $300,000 life insurance obligation and awarding $2,000 counsel fee | Henneberry: Enforcement required by ISA because alimony not modified; modest fee award appropriate given conduct | R. Henneberry: Life insurance should be reduced with alimony; fee award improper | Court: Because alimony remains, life insurance obligation remains at $300,000; fee award was modest and within discretion |
Key Cases Cited
- Lepis v. Lepis, 83 N.J. 139 (recognizes alimony/support agreements are subject to modification on showing of substantial and permanent changed circumstances)
- Miller v. Miller, 160 N.J. 408 (supporting spouse's ability to pay includes income, property, investments, and earning capacity)
- Chalmers v. Chalmers, 65 N.J. 186 (alimony subject to review and modification)
- Smith v. Smith, 72 N.J. 350 (court must consider all circumstances to decide equitable and fair support modification)
- Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div.) (good-faith retirement may constitute changed circumstances warranting a hearing, but not an automatic entitlement)
- Barblock v. Barblock, 383 N.J. Super. 114 (conclusory, undocumented assertions do not create genuine material factual disputes requiring a plenary hearing)